Archive for the ‘Zoning and Land Use’ Category

Can I rent my house to someone or can’t I?

Tuesday, May 19th, 2015

Back on March 4, 2015, I posted about a case involving Cedarburg where an appeals court held that a use of a single family dwelling in a residential zoning district which restricted uses to single family dwellings (and some other uses not pertinent to this post) did not prevent the owner from renting it out as a short term rental.  The appeals court in that case held that if the zoning code was silent on such restrictions of short term rentals, that the owner could use the house for short term rentals.

In a recent case, Accola vs. Vilas County, the appeals court held that a single family dwelling in the residential district could not be used for short term rentals.

So, in Cedarburg, single family dwellings in the residential district can be used as short term rentals.  In Vilas County they cannot. Why the different holdings?  Any seeming contradiction is merely superficial.  What both courts said is that you have to look carefully at the words of the zoning ordinance.  What does it say?  If it unambiguously restricts short term rentals, that is okay.  But if it is silent on that issue, then it does not restrict.  But be careful, the words of the ordinance are what matter – different words may give us a different result.

So the result in any given case will depend on the facts of that case and the words of that ordinance, not a broad (and likely false) generalization based on the factual results from a different case.

What does “single family residence” mean?

Wednesday, March 4th, 2015

Does it include a house which was clearly built to be a single family unit, which is a time-share where different families occupy the residence for a week at a time, but only one family at a time?  Does it include such a house which is rented out for short term rentals?

A recent court of appeals decision says yes, at least under circumstances where the zoning code is otherwise silent about duration.  If a zoning code allows a single family residence, and sets no other time constraints, then a zoning board cannot later arbitrarily impose such a time constraint.

In a decision recommended for publication, Heef Realty v. City of Cedarburg Board of Appeals, two homeowners were renting out single family homes they owned.  The Cedarburg zoning code allowed single family homes, and did not have any language at all about whether short term rentals of such homes was allowed.  But the City determined that short term rentals were not permitted by the code.  The appeals court, upholding a lower court decision, found that a restriction on the free use of property must be explicit – it cannot be implied into otherwise unambiguous language.

While the court did not decide that a municipality could never restrict short term rentals, it was clear that such restrictions must be unambiguous.  I would add that they cannot be arbitrary – they should be reasonable restrictions which have a rational relation to a legitimate government objective.

Lawn Mowing: Landower 1, County 0

Friday, September 19th, 2014

In the recent unpublished case of Forest County v. Dwayne Pasternak, the appellate court overturned a circuit court judgment enforcing a Forest County nuisance citation against a homeowner for a failure to mow his lawn. The appellate court found that the County had failed to show that an uncut lawn constitutes a nuisance.  This case turned on the definition of a public nuisance, and the gist of it was whether or not an uncut lawn creates a hazard to the health and safety of the public.  Under the set of facts in this case, the County had failed to provide sufficient evidence of such a risk to the public.

It would probably be unwise to jump to the conclusion that municipalities cannot enforce violations of ordinances regulating the height of lawns. The court in this case was quick to point out that here the citation was for a public nuisance which allegedly caused a health hazard, and the County had not proved a health hazard.  In other cases, municipalities have successfully enforced ordinances specific to noxious weeds and also maximum height regulations.

Nevertheless, this case, while unpublished, does present some things for municipalities to ponder when attempting to make a private property owner mow his or her lawn. It might also be noted that County action in this case was apparently prompted by a neighbor’s complaint.

As an aside, private property owners who don’t like what their neighbor’s are doing will sometimes try to get the local municipality involved to stop the neighbor. Neighbor against neighbor is a potential minefield where a municipality must tread very carefully.

County Shoreland Zoning Preempts Town Zoning with Shoreland

Monday, June 30th, 2014

Counties are required to have shoreland zoning under Wisconsin Statute § 59.692. Towns are not required to have zoning of any kind. But towns, under some circumstances, may have their own general zoning. The interplay between counties and towns in Wisconsin can sometimes be quite complex. (Cities and Villages generally fall under different rules and will not be discussed in this article). What happens if the same piece of land happens to fall under both a county shoreland zoning ordinance and a town general zoning ordinance?

In the case of Hegwood v. Town of Eagle Zoning Board of Appeals, the circuit court held that county shoreland zoning preempted town zoning. This means that the town zoning could not be enforced within the shoreland zoning area – in other words, the landowner only had to deal with the county, not the town. Hegwood had applied to the County for variances from its ordinance, and the county had approved the variances. However, the town authorities denied the variances, and Hegwood went to court.

Shoreland zoning’s reach includes land within 1,000 feet of a lake or pond, or 300 feet of a river or stream. You may own shoreland real estate and not even realize it!

This is a published decision of the court of appeals, and will have general applicability to all towns in Wisconsin. The only exception to the county shoreland preemption is if a town had a zoning ordinance in place before the county enacted shoreland zoning. In that case, a town’s more restrictive provisions would still be enforceable.

Annexation Challenge Denied for Lack of Standing

Thursday, October 3rd, 2013

In a case recommended for publication, the Darboy Joint Sanitary District No.1 and the Town of Harrison challenged the City of Kaukauna’s annexation of some land located with the Town and the Sanitary District.  This was a unanimous direct annexation – basically that means that all of the property owners and residents within the land favored the annexation.  The Town disfavored the annexation, and passed a resolution to that effect.

The Court did not discuss the merits of the case – the sole issue was “standing.”  In our court system, standing asks the question “who are you to bring this lawsuit?”  Our laws generally do not permit a person to bring a lawsuit unless they have some pretty direct connection to the issues.  In addition, towns in Wisconsin are statutorily blocked from challenging direct unanimous annexations.  Thus the court dismissed the Town’s action for lack of standing on statutory grounds, and dismissed the Sanitary District’s action for lack of an interest in the matter.

Although this was not the Court’s holding, the unwritten bottom line appears to be that if a unanimous group of property owners and residents want to be annexed and the city or village is in favor of it, with only limited exceptions, it’s probably going to happen.

Partial vs. Total Taking Not Relevant

Wednesday, April 10th, 2013

In a recent Appeals Court case, Gaborsky v. Zerkwekh and the City of Delafield, the court upheld the general notion that for a taking by government to occur, there “must be either a physical occupation or the deprivation of all or substantially all of the beneficial use of the taken property.”  In this case, a property owner, Zerkwekh, and the DNR had determined to remove a dam.  The dam had created a mill pond on which the plaintiff’s properties were situated.  In addition, tests of the sediment which was exposed by the draw down of the dam showed signs of contamination.  The plaintiffs argued that the contamination was caused by the City of Delafield, and that a partial taking had occurred.

The plaintiffs tried to distinguish between a partial and total taking, arguing that somehow the bar was lowered for a partial taking – apparently they argued that the “substantially all” portion was somehow not applicable in a partial taking.  But the court noted that the parties had not been physically deprived of their property, nor had they been deprived of “all or substantially all” beneficial use.  If anything, only a portion of their property had been affected by the alleged government action, and not to the “substantially all” extent.  The court affirmed the lower court ruling that it doesn’t matter whether the alleged taking is partial or total, that the test for a taking is either “physical occupation” or “deprivation of all or substantially all of the beneficial use” of the taken property.  The court held that no taking occurred, partial or otherwise.

City Pier vs. Private Pier: City 1, Private Pier 0.

Tuesday, January 22nd, 2013

Equal Protection Argument Does not Fly Against City of Lake Geneva.

In Johnson v. City of Lake Geneva, the Johnsons were ordered by the City to reduce the length of their pier to 100 feet or less, as required by a City ordinance.  Although the Johnson’s made a number of arguments, most failed because back in 1998, and again in 2007, they had signed stipulations agreeing to limit the length of their pier to 100 feet or, if the ordinance ever increased the length, to that new length limit.  But interestingly, the City had created an exception for municipal piers, and indeed the City’s pier exceeded 100 feet.  The Johnson argued that they must be treated similarly to the City, essentially that it was unfair for the City to exempt itself.  However, the Court easily found that the City’s pier was for a public purpose, while the Johnson’s pier was for a private purpose, and thus the two were not “similarly situation” and no violation of equal protection occurred.  Although on the surface this may seem unfair, in fact the “public purpose” of government actions often allows government to act in ways that a private party could not.

County’s Interpretation of Its Own Ordinance is Presumptively Correct

Sunday, November 11th, 2012

In another case of “you can’t fight city hall,” the Feursteins wanted to move a shed closer to a lake shore, but the zoning ordinance setback did not permit it because it would be too close to the rear lot line.  Feuerstein v. Sawyer County Board of Appeals.

Although this case had some confusing facts and a very odd shaped lot, in essence it came down to whether the County’s interpretation of what was a “rear lot line” or the Feuerstein’s interpretation would win out.  In cases of interpretation of ordinances, the general rule is that a municipality’s reasonable interpretation of its own ordinance is presumptively correct.  Of course, presumptions can be overcome, but they have to be overcome with sufficient reasons.  Simply pointing out that there might be another way to interpret an ordinance will probably not win you a court case if the municipality’s interpretation is reasonable.  In this case, looking at the map of the property, the County’s interpretation certainly is plausible on its face, and the Court upheld the County’s decision.  Click on the link above to read the case and see a map of the somewhat goofy lot lines

Legislature Enacts Changes in Zoning Law Regarding Nonconformance

Friday, July 27th, 2012

With the passage of 2011 Wisconsin Act 170, the state legislature made several significant changes to Wisconsin’s zoning laws with respect to nonconforming structures.  The provisions in the new law went into effect on April 17, 2012.  Many of the changes affect shoreland zoning, and some affect zoning in general.

With respect to shoreland zoning, the new law limits the ability of counties to be more restrictive than the DNR shoreland regulations, NR 115, for substandard lots and nonconforming structures.  NR 115 sets minimum standards for such things as building setbacks, lot size, boathouses, etc.

With respect to shoreland and general zoning, probably the most significant change is that local (county, city, village or town) zoning ordinances “may not prohibit, or limit based on cost, the repair, maintenance, renovation, or remodeling of a nonconforming structure.”  It is fairly common for zoning ordinances to limit repair, maintenance, renovation, and remodeling based on a 50% rule which had been the statutory rule until the enactment of the new law.  Any such provision is now unenforceable.

Note that this does not say that no limits may be placed on the repair, maintenance, renovation, or remodeling of nonconforming structures.  Only that such limits may not be based on cost.

Finally, the new law did not affect floodplain zoning, so presumably limits on repair, maintenance, renovation, or remodeling in floodplains based on cost remain valid.

Zwiefelhofer v. Town of Cooks Valley – Towns May Regulate Frac Sand Mining

Thursday, February 9th, 2012

In a closely watched case, the Wisconsin Supreme Court held that the Town of Cooks Valley (with village powers) had the power, under its police power, to adopt a non-zoning ordinance licensing and regulating non-metallic (for example, frac sand) mining.  Arguing that the ordinance at issue was really a disguised zoning ordinance, the plaintiff asked the court to uphold the decision of the circuit court which struck down the ordinance.  In declining to adopt the plaintiff’s position, the court recognized that while zoning ordinances and pure police power regulations are closely related, they are not the same.  As a result, so long as towns do not cross the line separating zoning ordinances and police power regulations (meant to protect the health, safety and welfare of residents), towns have the authority to adopt regulatory and licensing ordinances. Importantly, this authority extends to the regulation of activities involving land use, such as non-metallic mining.

 This decision is extraordinarily important for towns in west-centralWisconsinwhich are attempting to deal with the explosion of frac sand mines in the area.  This decision provides towns with clear authority to adopt ordinances requiring a license to operate a frac sand mine (and related activities).  It appears that this regulation may be accomplished either directly through the provisions contained in the ordinance or by placing conditions on the issuance of the license (similar to a conditional use permit).  Many towns in west-centralWisconsinhave either adopted, or have begun the process of considering the adoption of, these types of non-metallic licensing ordinances.  The court’s decision in this case ends the debate as to whether towns with village powers have the authority required to adopt and enforce these kinds of ordinances.

 If you are a town board member in a west-centralWisconsintown, we encourage you to consider whether non-metallic mining should be regulated in your town.  If your board believes it should be, this case provides a clear process for enacting those regulations. 

  •  First, your town should adopt village powers (if it has not already done this). 
  •  Second, if you are not located in a county with a moratorium currently in place, you should consider adopting a short moratorium on non-metallic mining.  
  • Third, use the breathing room provided by the moratorium to study, prepare, debate and possibly enact a licensing and regulatory ordinance. 

 To be clear, the goal cannot be to completely prohibit frac sand mining in your town.  Instead, the goal of your ordinance should be to provide reasonable regulations to protect the health, safety and welfare of your residents.  There are a number of factors to consider when adopting such ordinances, and no town is exactly like another.  However, at a minimum, most towns believe it is important to accomplish the following: (i) protection of roads, air quality and water; (ii) mitigation of noise, dust and debris; (iii) prevention of high intensity lights at night; (iv) eliminate unsightliness (and associated property price decreases for neighbors); (v) regulate hours and method of blasting; and (vi) financial security. 

If your town is considering adopting such an ordinance, yesterday’s Supreme Court decision is good news.  However, it is important to remember that unless you go through the procedure of adopting a zoning ordinance (which generally requires county approval), you must still be careful not to cross the line between zoning and pure police power regulations.

Written by guest author Adam Jarchow, Attorney at Law, Bakke Norman, S.C.